Tests for advocacy- Civil litigation Flashcards
What is the test for setting aside default judgement? (CPR 13)
- Discretionary
1. D has a real prospect of successfully defending the claim, or it appears to the court that there is some other good reason why judgement should be set aside or varied or the D should be allowed to defend.
2. Court must also consider how promptly the D made its application to set the judgement aside.
Relief from sanctions:
1. If breach of the relevant rule, practice direction or court order is neither serious or significant, then relief should be granted.
2. If breach is neither serious or significant, consider why the default occured.
3. Having considered the reason for the default, the court should then evaluate all the circumstances of the case to ensure the court deals with the matter justly.
What is the test for summary judgement? (CPR 24)
- Claimant has no real prospect of succeeding on the claim or issue or
2.D has no real prospect of successfully defending the claim.
AND
There is no other compelling reason why the case or issue should be disposed of at trial.
What is the test for a strike out? (3A)
- Statement of case disclosed no reasonable grounds for bringing or defending a claim, or
- Where a statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings.
- Failure to comply with a rule, practice, direction or court order.
What is the test for security for costs? (CPR 25)
Defendant making application:
1. Having regard to all the circumstances of the case, it is just to make an order
2. One of more of the prescribed conditions in the rules are satisified
- C is a company and there is reason to believe they would be unable to pay the D’s costs if ordered to do so.
- Claimant has taken steps in relation to its assets that would make an enforcement of a costs order against it difficult.
- C has changed address since claim was commenced with a view to evading the consequences of litigation.
- claimant failed to give an address in the claim form.
- Reason to believe it will be unable to pay the D’s costs if ordered to do so.
(other facts include D’s likelyhood of succeeding, whether the claimant’s poor financial status is due to D’s conduct, D is bringing this for petty means)
What is the test for interim injunction? (part 25)
- Is there a serious question to be tried?
- Would damages be an adequate remedy for a party injured by the court’s grant or failure to grant, an injunction?
- Where does the balance of convenience lie?
What is the test for interim payment? (part 25)
- Defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
- The claimant has obtained judgement against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed.
- It is satisfied that, if the claim went to trial, the claimant would obtain judgement for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment, whether or not that D is the only defendant or one of a number of D’s to claim.
What is the test for relief from sanctions?
Denton
1. Breach is neither serious or significant.
2. If breach is neither serious or significant consider why the breach occurred.
3. Consider all the circumstances of the case to deal wit it justly/
What is CPR 1 and the subsections within it?
1.1- Overriding objective of enabling the court to deal with cases justly and at a proportionate cost.
a- equal footing in proceedings and present best evidence.
b- save expenses.
c- deal with case in ways which are proportionate
- amount of money involed.
- importance of the case.
- complexity of the issues.
- financial position of each party.
d- dealt with expeditiously and fairly.
g- enforcing compliance with rules, practice directions and orders.
What is CPR 1.3 to do with parties and the overriding objective?
the parties are required to help the court to further the overriding objective.
What is CPR 3?
Court’s general powers of management (overall to do about taking steps or making orders to further the overriding objective).
what is CPR 44.2 (court’s discretion as to costs) and the factors the court will have regard to?
Court has discretion as to
- whether costs are payable by one party to another.
- amount of those costs.
- when they are to be paid.
regards to
- conduct of the parties.
- succeeded on part of the case.
- any admissible settlement offer.
what is the general rule in relation to costs as per CPR 44.2?
unsuccessful party will be ordered to pay the costs of the successful party.
when is the best time to consider a settlement?
between exchange of evidence and before trial.
ideal to give the parties reasonable time to consider the documents, have a better understanding of what each side is arguing and think about settling.
what is the test for standard disclosure? (CPR 31)
- a DOCUMENT.
- Which is in their control.
- They seek to rely on.
- the document which adversely affects his own case, adversely affects another party’s case or support another party’s case or a document which he is required to disclose by a relevant practice direction.
what is the duty of search within standard disclosure>
a party is required to make a reasonable search for documents including the number of documents involved, nature and complexity of proceedings, significance of documents.
what does specific disclosure require the parties to do?
- Disclosure documents/classes of documents specified in the order.
- Carry out a search to the extent stated in the order.
- Disclose any documents located as a result of that search.
what are the factors the court taken into account when the defendant makes an application for security for costs?
- SECURITY FOR COSTS IS DISCRETIONARY
- Whether the defendant’s claim is bona fide and not a sham, has reasonably good prospects of success and whether admissions into court have been made.
- whether the defendant is using the application to stifle the applicant’s claim. (will not be able to pursue the claim further if they pay these costs)
- whether the defendant’s actions have resulted in the large losses the claimant has suffered.
- whether the defendant is delayed in making the security for costs application.
what does ‘without prejudice as to costs’ mean?
a settlement will not be shown to the trial judge except on the issue of costs once judgement is made.
